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Kenley v. District of Columbia

United States District Court, D. Columbia.

March 13, 2015

WILLIAM KENLEY, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants

For WILLIAM KENLEY, Plaintiff: Grey A. Gardner, LEAD ATTORNEY, GARDNER LAW PLLC, Washington, DC; Richard Alan Seligman, LEAD ATTORNEY, LAW OFFICES OF RICHARD SELIGMAN, Washington, DC.

For DISTRICT OF COLUMBIA, Office of the Attorney General, Defendant: Sarah L. Knapp, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC; Steven J. Anderson, OFFICE OF ATTORNEY GENERAL FOR DC, Washington, DC.

For ADAM SHAATALL, MPD Officer, Fifth District Station, MICHAEL LITTLEJOHN, MPD Officer, Fifth District Station, BALDWIN BALDWIN, MPD, JONATHAN DORROUGH, MPD, Defendants: Sarah L. Knapp, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC; Steven J. Anderson, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL FOR DC, Washington, DC.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

In this lawsuit, Plaintiff William Kenley recounts a particularly unpleasant experience with the Metropolitan Police Department. On June 20, 2013, he alleges that he witnessed MPD officers assaulting and arresting his friend without any justification, so he began to videotape the interaction on his cellphone. In response, an officer charged at him, knocked his phone from his hands, and pushed him to the ground. MPD officers then gathered at the scene and conspired to arrest him in retaliation for his recording and to cover up their wrongful conduct. In furtherance of this plan, Kenley alleges, they falsely claimed that he had goaded his dog to attack one of the officers. As a result, he was arrested, detained overnight, and formally charged with assault on a police officer. An unknown officer also contacted his employer to inform it of his arrest, causing him to be suspended from work until the prosecutor eventually moved to dismiss the charges.

This course of events precipitated this action against the District of Columbia and four MPD officers for violations of Kenley's First, Fourth, and Fifth Amendment rights and for related state-law torts. Defendants have filed separate Motions to Dismiss, alleging defects in certain of these claims, and Kenley now seeks leave to amend his Complaint. Defendants oppose on the ground that amendment would be futile. The Court agrees with respect to some claims, but not others. It will, accordingly, grant Plaintiff's Motion to Amend in part, allowing certain causes of action to proceed against certain Defendants.

I. Background

Taking the facts as alleged in the proposed Amended Complaint, the Court begins with Kenley's observing Metropolitan Police Department officers' false arrest of his friend, Richard Jones, on June 20, 2013. See Am. Compl., ¶ ¶ 1, 8, 10-11. One of the officers, Adam Shaatal, had approached Jones's parked car and, " for no apparent reason," demanded that he produce identification and step out of his vehicle. Id., ¶ 9. When Jones " voiced offense" at the officer's " hostile and threatening approach and asked why he was being questioned," Shaatal told Officer Michael Littlejohn that Jones was resisting arrest. Id., ¶ ¶ 9-10. The two proceeded to place Jones in a chokehold, beat with him a baton, and force him to the ground. Id., ¶ 10.

Kenley, " standing a safe distance away," started videotaping the incident on his cellphone. Id., ¶ 11. He " repeatedly noted . . . that Jones was not resisting." Id. As Shaatal placed Jones in handcuffs, he looked at Kenley and told Officer Brandon Baldwin to " get him back." Id. Baldwin subsequently " charged" at Kenley, intentionally knocking his cellphone from his hands and shoving him " violently" to the ground. Id., ¶ 12. Kenley dropped his phone and suffered injuries to his left ankle as a result. Id.

Around the same time, Kenley's mother opened the front door of his house, and his dog came running out. Id., ¶ 13. The officers drew their guns and pointed them at Kenley and his dog. See id. " [I]n an effort to defuse the situation," Plaintiff took the dog back inside. Id.

Officers Shaatal, Littlejohn, and Baldwin then met with other officers who had arrived at the scene. See id., ¶ 16. During this meeting, which lasted for an " extended period of time," Shaatal, Littlejohn, Baldwin, Sergeant Jonathan Dorrough, and others " agreed to falsely charge Mr. Kenley with assaulting a police officer" and to " institute criminal proceedings" against him in order to intimidate him and " cover up their wrongful conduct." Id., ¶ ¶ 16-18. In aid of this effort, Officer Shaatal claimed that Kenley had assaulted him by instructing his dog to " get him, sic him." Id., ¶ 20. Kenley was arrested, and Baldwin, who " knew or should have known" that Shaatal's claim was false, wrote up an arrest report based on his accusation. Id. Shaatal told Kenley: " Next time, mind your business . . . see you in court . . . animal control is coming for your dog . . . there goes your job." Id., ¶ 14 (internal quotation marks omitted).

Afterwards, Dorrough secured the area and canvassed it for witnesses. See id., ¶ 21. At least two were interviewed, and one of whom gave a statement that when the dog ran outside, Kenley did not encourage it to attack, but instead said, " Mom, put her back in the house." Id. (internal quotation marks omitted). That evening or the next morning, Dorrough told Baldwin about the exculpatory statement. Although Baldwin, the " papering officer," and Dorrough, the supervising officer, were allegedly required to turn over all witness statements to the U.S. Attorney during the " papering" process -- i.e., the prosecution's initial screening of the case for formal charging -- they did not disclose this statement. See id., ¶ ¶ 22-23. Nor did Shaatal. See id., ¶ 22. Baldwin and Littlejohn also did not divulge to the prosecution that they were present when the dog ran out and that they did not hear Kenley say " get him, sic him." See id., ¶ 19.

As a result of the officers' actions, Kenley was detained overnight, presented in court, and charged with felony assault on an officer. See id., ¶ 20. Sometime after the arrest, an unknown officer also informed Kenley's employer of the charges, and he was suspended from work without pay while the case was pending. See id., ¶ 15. Over a month after the incident, the witness statement and " exculpatory evidence" were finally turned over to the prosecutor. See id., ¶ ¶ 25-26. After receiving this information and conducting an investigation, the prosecutor moved to dismiss the charges against Kenley, and his case was dismissed on September 18, 2013. See id., ¶ 26.

Plaintiff suffered a number of injuries as a result of this incident, including " lost wages, medical expenses[,] . . . emotional distress, and . . . damage to his professional reputation." Id., ¶ 40. He thus filed an initial Complaint in D.C. Superior Court on June 20, 2014, against Officers Shaatal, Littlejohn, and Baldwin, as well as Sergeant Dorrough and the District of Columbia. He alleged a variety of claims under 42 U.S.C. § 1983 and the U.S. Constitution, along with several state-law tort claims. The District removed the case to federal court and thereafter filed a Partial Motion to Dismiss. See District Mot. to Dismiss, ECF No. 4. The individual Defendants followed suit, filing their own separate Partial Motions to Dismiss. See ECF Nos. 7, 8, 12, 14. Plaintiff now moves to file an Amended Complaint.

II. Legal Standards

A plaintiff may amend his complaint once as a matter of course within 21 days of serving it or within 21 days of being served a responsive pleading. See Fed.R.Civ.P. 15(a)(1). Otherwise, the plaintiff must seek consent from the defendant or leave from the Court. See Fed.R.Civ.P. 15(a)(2). The latter " should [be] freely give[n] . . . when justice so requires." Id. In deciding whether to deny leave to file an amended complaint, courts may consider " undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). But in this Circuit, " it is an abuse of discretion to deny leave to amend unless there is sufficient reason." Firestone v. Firestone, 76 F.3d 1205, 1208, 316 U.S.App.D.C. 152 (D.C. Cir. 1996).

In the present case, Defendants do not argue undue prejudice, delay, or bad faith; instead, they contend only that the Court should not grant leave because amending the Complaint would be futile. Courts need not grant leave to amend if the proposed amendments would still render a complaint deficient. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218, 393 U.S.App.D.C. 415 (D.C. Cir. 2010). That is to say, " a district court may properly deny a motion to amend if the amended pleading would not survive a motion to dismiss." Id.; see also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099, 317 U.S.App.D.C. 281 (D.C. Cir. 1996) (" Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss." ).

Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed if it fails " to state a claim upon which relief can be granted." In evaluating a motion to dismiss, the Court must " treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App.D.C. 23 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005). The notice-pleading rules are " not meant to impose a great burden on a plaintiff," Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and he must, therefore, be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

At the same time, although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). A plaintiff must put forth " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court need not accept as true " a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193, 372 U.S.App.D.C. 335 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)). And while a plaintiff may survive a 12(b)(6) motion even if " recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Id.

III. Analysis

Plaintiff's proposed Amended Complaint includes federal claims, brought pursuant to 42 U.S.C. § 1983, for violations of his First, Fourth, and Fifth Amendment rights. It also asserts state-law tort claims for false arrest, false imprisonment, malicious prosecution, assault and battery, conspiracy, negligence, and defamation. In determining whether granting leave to amend would be futile, the Court has looked primarily at the Motion to Amend the Complaint and Defendants' arguments in opposition thereto. The Court has also considered whether any other arguments from Defendants' earlier Motions to Dismiss would warrant dismissal. It will now address the sufficiency of each of Plaintiff's claims in order of count.

A. Count I: First Amendment Violations

This claim is brought against all four officers and the District of Columbia. Baldwin, who is accused of having knocked Plaintiff's cellphone from his hands, concedes that the Amended Complaint adequately states a First Amendment claim against him. Dorrough's Opposition does not address the issue at all, effectively conceding it. The Court thus analyzes whether the Amended Complaint is sufficient with regard only to the other two officers and the District of Columbia.

1. Individual Officers

Kenley's First Amendment cause of action against Shaatal and Littlejohn is based on the theory that the officers participated in a conspiracy to deprive him of his free-speech rights. The officers assert that the claim is flawed on two grounds. They argue, first, that the Amended Complaint falls short of adequately alleging the existence of a conspiracy. They then insist that even if it does, the alleged conspiracy took place after the action that forms the basis of Kenley's First Amendment claim -- i.e., Officer Baldwin's knocking the phone away -- and thus it could not have been formed to deprive him of his First Amendment rights. While not raised specifically in relation to this count, Defendants also argue elsewhere that the intracorporate-conspiracy doctrine bars any finding of a conspiracy in this case. The Court will address these issues in turn.

a. Conspiracy

" To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Austin v. District of Columbia, No. 05-2219, 2007 WL 1404444, at *11 (D.D.C. May 11, 2007) (quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)) (internal quotation marks omitted). A complaint must set forth facts making the existence of a conspiracy plausible; conclusory statements are not enough. Courts have thus dismissed conspiracy claims where, for example, plaintiffs simply alleged that defendants had " agreed" or " conspired" to violate their rights but did not provide a " description of the persons involved in the agreement, the nature of the agreement, what particular acts were taken to form the conspiracy, or what overt acts were taken in furtherance of the conspiracy." Bush v. Butler, 521 F.Supp.2d 63, 68-69 (D.D.C. 2007); see also, e.g., Mattiaccio v. DHA Group, Inc., 20 F.Supp.3d 220, 230 (D.D.C. 2014) (plaintiff failed to plead conspiracy where she only alleged that defendants " entered into an agreement to commit an illegal act of defamation against [p]laintiff" and that other defendants " authorized, instigated, condoned and/or participated in the conspiracy to commit the defamation" ); Acosta Orellana v. CropLife Intern., 711 F.Supp.2d 81, 113 (D.D.C. 2010) (dismissal of conspiracy claim warranted because plaintiff alleged only that defendants " acted in concert" and did not, for example, " provide any indication of when or how such an agreement was brokered" ).

Here, by contrast, Kenley has specifically named several of the persons involved in the conspiracy, described the scope of the purported agreement, stated when it was formed, and identified acts taken in furtherance of it. More specifically, according to the Amended Complaint, Officers Baldwin, Shaatal, and Littlejohn met with Sergeant Dorrough and others who had arrived at the scene " for and [ sic ] extended period of time." Am. Compl., ¶ 16. During the meeting, they " agreed to falsely charge Mr. Kenley with assaulting a police officer" and " to unlawfully institute criminal proceedings against . . . [him]." Id., ¶ ¶ 17-18. Their motive was " to intimidate Mr. Kenley and cover up their wrongful conduct with respect to both Jones and Kenley." Id., ¶ 18. Among other things, to advance the conspiracy, Baldwin wrote an arrest report that included a fabricated claim that Plaintiff had instructed his dog to attack Shaatal. See id., ¶ 20. These allegations sufficiently plead the existence of a conspiracy.

b. Relevant Conduct

Kenley has also adequately alleged that the officers conspired to deprive him of his First Amendment rights. Defendants do not challenge the theory that videotaping police officers and making statements about their conduct is protected by the First Amendment, so the Court assumes for purposes of this Motion that it is. The officers seem to believe, however, that the only conduct implicating Kenley's First Amendment rights was Baldwin's action striking the cellphone from his hands, and that, therefore, the other officers cannot be held liable for any First Amendment violation. But Kenley's allegations are broader than this. He also asserts that the officers conspired to falsely arrest him and charge him with assault on an officer because he had recorded them and commented that Jones was not resisting arrest -- i.e., in retaliation for exercising his First Amendment rights. See Am. Compl., ¶ 11-18; Reply to Officers' Opp., ECF No. 38, at 8.

" Official reprisal for protected speech 'offends the Constitution [because] it threatens to inhibit exercise of the protected right,' and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (quoting Crawford-El v. Britton, 523 U.S. 574, 588 n.10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)) (alteration in original). A plaintiff may have a viable claim that his First Amendment rights were violated if he alleges that he was arrested or that criminal charges were pursued against him, in the absence of probable cause, because of a government official's retaliatory animus against his speech. See id.; see also Patterson v. United States, 999 F.Supp.2d 300, 308 (D.D.C. 2013) (" [I]t is well established that where . . . there is an allegation of retaliatory arrest in the absence of probable cause, the plaintiff has a viable First Amendment claim." ) (emphasis omitted); Westfahl v. District of Columbia, No. 11-2210, 2014 WL 6999078, at *4 (D.D.C. Dec. 12, 2014) (denying summary judgment for defendants on plaintiff's First Amendment retaliation claim because jury could find absence of probable cause and that plaintiff's " participation in [a] protest may have motivated his arrest" ).

Taking Plaintiff's allegations as true, as the Court must at this stage, Kenley has sufficiently stated a First Amendment claim.

c. Intracorporate-Conspiracy Doctrine

Although not specifically asserted in relation to Plaintiff's First Amendment claims, Defendants also rely on the intracorporate-conspiracy doctrine to maintain that they could not have engaged in a conspiracy. " [T]his doctrine states that a corporation cannot conspire with its employees, and its employees, when acting within the scope of their employment, cannot conspire among themselves." Tabb v. District of Columbia, 477 F.Supp.2d 185, 190 (D.D.C. 2007) (internal quotation marks and citation omitted). It originated in the antitrust context, where the Supreme Court held that a parent corporation and its wholly owned subsidiary could not have violated the conspiracy provisions in Section 1 of the Sherman Act because they were the same legal entity -- that is, there were not two distinct legal actors capable of conspiring with one another. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). Lower courts have extended the doctrine's application to other contexts over the last three decades. They have, for instance, frequently applied it to prohibit claims that entities and their employees, or their employees by themselves, violated the anti-conspiracy provisions in 42 U.S.C. § 1985. See Bowie v. Maddox, 642 F.3d 1122, 1130, 395 U.S.App.D.C. 301 (D.C. Cir. 2011) (listing cases). Indeed, numerous district courts in this jurisdiction have applied it to bar Section 1985 conspiracy claims against employees of the same government entity. See, e.g., Tabb, 477 F.Supp.2d at 189-90 (holding two District employees could not have violated § 1985(2) by conspiring with one another to fire plaintiff because their acts were attributable to single entity); id. (listing additional cases applying doctrine to bar § 1985 claims). The D.C. Circuit, however, " ha[s] yet to pick sides in the circuit split regarding the doctrine's applicability to civil rights cases in general and the first clause of § 1985(2) in particular." Bowie, 642 F.3d at 1130 n.4.

Even if the doctrine is applicable to Section 1983 cases, this Court harbors significant doubts that it would apply under the circumstances alleged here. As a fellow district court in this jurisdiction explained: " The intracorporate conspiracy doctrine was created to shield corporations and their employees from conspiracy liability for routine, collaborative business decisions that are later alleged to be discriminatory." Kivanc v. Ramsey, 407 F.Supp.2d 270, 275 (D.D.C. 2006) (internal quotation marks and citation omitted). Courts, including Kivanc, have thus held that the doctrine is inapplicable in cases alleging egregious police misconduct that cannot be fairly characterized as involving routine business decisions. See, e.g., id. at 276 (" The Court is not persuaded that agreements to conceal assault and battery with false police reports -- as plaintiff alleges in this case -- could conceivably be classified as the products of routine police department decision-making. The Court declines defendants' invitation to adopt a categorical policy that it is legally impossible for one police officer to conspire with another to deprive an individual of his rights under Section 1983." ); see also, e.g., Rawlings v. District of Columbia, 820 F.Supp.2d 92, 105 (D.D.C. 2011) (noting that even if defendant officers had been acting within the scope of their employment when they tried to retrieve a motorbike from an individual, their alleged agreement to commit assault and battery " could not conceivably be classified as the product of routine police department decision-making," and doctrine would not have protected them from liability); Newsome v. James, No. 96-7680, 2000 WL 528475, at *15 (N.D.Ill. Apr. 26, 2000) (rejecting doctrine's application because " [t]he decision to frame plaintiff for . . . murder . . . is not the product of routine police department decision-making" ). The Court believes that the decision to falsely charge Kenley with assault on an officer in order to retaliate against him and cover up the officers' own misconduct can hardly be said to fall within the ambit of routine police-department decision making that the doctrine is meant to cover.

Where courts have recognized the doctrine, moreover, they have noted various exceptions to its application. One carve-out potentially relevant here is for situations in which employees have " an independent personal stake in achieving the corporation's illegal objectives." Rawlings, 820 F.Supp.2d at 105 (internal quotation marks and citations omitted); see also Bowie, 642 F.3d at 1130 (noting that circuits that have recognized the doctrine in civil-rights cases have found exceptions, including " where the corporate agents' actions were either unauthorized or motivated by 'an independent personal stake in achieving the corporation's illegal objective'" ) (quoting Buschi v. Kirven, 775 F.2d 1240, 1252 (4th Cir. 1985). " This exception, like the requirement that employees be acting within the scope of their duties, limits the scope of the doctrine to those circumstances where an employee's act is fairly attributable to the employer . . . ." Rawlings, 820 F.Supp.2d at 105. Courts have, accordingly, rejected the doctrine's applicability where an entity's employees are pursuing their own personal interests, rather than the interests of the corporate entity. See, e.g., Petrishe v. Tenison, No. 10-7950, 2013 WL 5645689, at *6 (N.D.Ill. Oct. 15, 2013) (plaintiff had sufficiently alleged that officers were not pursuing any interests of the city " when they erased six seconds of [a] taser video to cover-up their unjustified shooting of [the plaintiff]" ). This exception casts further doubt on the relevance of the doctrine to this case.

The above analysis notwithstanding, the briefing on this issue was rather perfunctory. Although Defendants cited a handful of district court cases applying the doctrine to dispose of § 1985 conspiracy claims, see, e.g., District's Opp., ECF No. 18, at 12 (citing Tabb, 477 F.Supp.2d at 185, 191; Tafler v. District of Columbia, No. 05-1563, 2006 WL 3254491, at *10 (D.D.C. Nov. 8, 2006); Michelin v. Jenkins, 704 F.Supp. 1, 4 (D.D.C. 1989); Gladden v. Barry, 558 F.Supp. 676, 680 (D.D.C. 1983)), they did not engage in any meaningful discussion about its scope. Nor did they offer a persuasive reason that it should apply here, when its genesis was to protect corporations and their employees from " conspiracy liability for routine, collaborative business decisions that are later alleged to be discriminatory," and when it " has been held by most courts not to shield defendants from conspiracy claims brought under Section 1983 based on police misconduct." Kivanc, 407 F.Supp.2d at 275-76 (emphasis added; internal quotation marks and citations omitted). The Court thus declines, at this juncture, to dismiss the conspiracy-related claims on this basis. Defendants may raise the issue again on summary judgment, but the Court expects a more comprehensive argument. In the meantime, Kenley may proceed on his First Amendment claims against all four of the individual officers.

2. District of Columbia

The viability of a First Amendment cause of action against the District, conversely, yields a different outcome. " [U]nder Section 1983, local governments are responsible only for their own illegal acts[; ] . . . [t]hey are not vicariously liable . . . for their employees' actions." Connick v. Thompson, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (internal quotation marks and citations omitted). To state a Section 1983 claim against a municipality, a plaintiff must therefore allege that it maintained a policy or custom that caused the violation of his or her constitutional rights. See id. (citing Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Warren v. District of Columbia, 353 F.3d 36, 38, 359 U.S.App.D.C. 179 (D.C. Cir. 2004). In this case, Kenley does not contend that the District or one of its policymakers adopted an explicit policy of interfering with the rights of citizens to record police interactions. In fact, the Amended Complaint acknowledges that in July 2012, the District issued MPD General Order 304-19, which explicitly states that officers may not impede the public's right to videotape the police when they are discharging their official duties. See Am. Compl., ¶ ¶ 30-32. Plaintiff bases his claim, instead, on the District's failure to train and supervise its officers about this policy. See id., ¶ 45.

The Supreme Court has recognized that a municipality's failure to train its officers can form the basis of a Section 1983 claim against it, but " only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). As the Court explained, in some circumstances, " the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. at 390. That is to say, " when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." Connick, 131 S.Ct. at 1360 (citing Board of County Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). A municipality can likewise be liable for inadequately supervising its employees if it was deliberately indifferent to an obvious need for greater supervision. See, e.g., Colbert v. District of Columbia, 5 F.Supp.3d 44, 60 (D.D.C. 2013).

" Deliberate indifference is a stringent standard of fault . . . ." Connick, 131 S.Ct. at 1360 (quoting Bryan County, 520 U.S. at 410 (internal quotation marks omitted). " A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Id. (quoting Bryan County, 520 U.S. at 409). So too with failure-to-supervise claims. See, e.g., Colbert, 5 F.Supp.3d at 60.

Kenley has not cleared this bar here. For one thing, contrary to Plaintiff's view, his allegation that " the District of Columbia was deliberately indifferent to and failed to exercise reasonable care in its supervision and training of [its] officers" does not provide any support for such a claim. See Reply to District Opp. at 6 (quoting Am. Compl., ¶ 35). The statement is nothing more than " a legal conclusion couched as a factual allegation," which the Court is not obligated to accept. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also, e.g., Sheikh v. District of Columbia, No. 14-316, 2015 WL 58830, at *7 (D.D.C. Jan. 5, 2015) ( plaintiff failed to state claim against District of Columbia where complaint ...


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